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Divorce: Temporary Restraining Orders on a Party’s Assets

A Temporary Restraining Order (“TRO”) is a court order that prohibits one or both of the parties from doing certain things while the case is pending. A TRO is usually issued at the beginning of a case, generally attached to the complaint, and stays in effect until it is either modified by the court or the case ends. Either party may request a TRO or a court may issue a mutual TRO, generally at the beginning of the case. A mutual TRO restrains both parties, unlike a TRO sought by only one party. A TRO can also restrain a third party defendant to a case, such as a financial institution, from allowing one or both of the parties to do something (i.e., withdraw money from a retirement account).

TRO’s typically prohibit dissipating assets, harassing the other party, incurring debt, changing or cancelling insurance coverage, and/or permanently removing minor children from the county in which the TRO is issued. However, if one spouse submits a motion supported by a sworn affidavit stating to a court that the other spouse is about to dispose of or encumber “marital property” (property subject to equitable division by the court), the court may grant a TRO to prevent that action.

A TRO can require a financial freeze on all marital property to ensure that neither spouse can destroy, transfer, spend, damage, dispose of, hide, or sell any property that falls within the marital scope. The TRO, however, does not put an entire freeze on the financial flow of bank accounts and other property used in the usual course of business. Both parties still need access to their credit cards, bank accounts, cars, homes, and other necessities of life to maintain the status quo. The purpose of this restraining order is to ensure that high-value assets do not go missing, are sold, or destroyed before the court can partition the marital property because of the divorce. The other purpose is to protect the spouse with the least amount of control over the financial marital property; this is extremely important if one of the spouses has been the sole breadwinner while the other spouse was the homemaker. Financial equity is the most important aspect of property division.

As stated above, if your spouse violates the above order you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

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